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2016 (9) TMI 1143 - ITAT MUMBAI

2016 (9) TMI 1143 - ITAT MUMBAI - TMI - Bogus long term capital gain entries - whether the statement of Shri Mukesh Choksi is sufficient to the addition? - Held that:- Except the statement of Shri Mukesh Choksi there is no material available to the Assessing Officer for the said addition. No opportunity of cross examination of Shri Mukesh Choksi was given to the assessee. It is not in dispute that the sales were effected from Demat Account No.10111342 with Dena Bank. Sale consideration of ₹ .....

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cross examine the Shri. Mukesh Choksi. The number of decisions have come in favour of the assessee which were based upon the statement of Shri Mukesh Choksi - Decided in favour of assessee. - I.T.A. No.7372 /Mum/2013 - Dated:- 12-8-2016 - SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM For The Assessee : Shri M. S. Mathuria For The Department : Shri Mahender Bishnoi ORDER PER AMARJIT SINGH, JM: The assessee has filed the present appeal against the order dated 05.09.2013 passed by the Commissioner .....

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On the facts and in the law as well as in the circumstances of the Appellant s case, the learned CIT(A) has erred in adjudicating that the impugned assessment order passed u/s.143(3) r.w.s. 147 by the ITO, Ward 13(2)(1), Mumbai without issue / service of notice u/s.143(2) is valid and legal. 3. On the facts and in law as well as in the circumstances of the Appellant s case, the learned CIT(A) has erred in adjudicating that initiation of proceedings u/s.147 by issue of notice u/s.148 dated 28.03. .....

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.2011 is valid and legal even though- [a] Appellant s return of income for assessment year 2004-05 was not available in his charge; [b] said ITO Ward 17(3)(1) was having legal and valid jurisdiction to continue the proceedings till 17.11.2011 without transferring the proceedings to the jurisdictional ITO, Ward 13(2)(1), Mumbai. 5. On the facts and in law, the learned CIT(A) has erred in holding that lacunae if any is covered by section 292B of the I.T.Act, 1961. 6. On the facts and in law, the l .....

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u/s.148- Before issue of notice u/s.142(1) / 143(2) dated 29.11.2011 and 30.11.2011 respectively. 8. The jurisdictional ITO, Ward 13(2)(1), Mumbai has erred in passing impugned assessment order without providing copies of - [a] reasons recorded by him that- [i] income chargeable to tax for assessment year : 2004-05 has escaped assessment in terms of section 147 or [ii] the appellant failed to file his return of income u/s.139 / 142(1) / 148 or [iii] the appellant failed to disclose fully and tr .....

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d Securities Pvt. Ltd., [iii] ITA No.4999/Mum/2005 in case of Messrs Alpha Chemie Trade Agencies Pvt. Ltd. [iv] ITA No.4912/Mum/2005 in case of Messrs. Mihir Agencies Pvt. Ltd. 9. The jurisdictional ITO, Ward 13(2)(1), Mumbai has erred in passing impugned assessment order without providing cross examination of the person named Shri Mukesh M. Choksi on whose alleged statement he has relied for making impugned assessment. 10. On the facts and in law, impugned assessment order required to be quashe .....

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on as advised. 3. The brief facts of the case are that the ITO 17(1)(3), Mumbai after recording the reason for initiating proceedings u/s.147 of the Income Tax Act, 1961 ( in short the Act ) and obtaining the sanction of Addl. CIT 17(1), Mumbai, has issued notice u/s.148 of the Act and served upon the assessee. The assessee vide letter dated 05.04.2011 has stated that his original return filed u/s.139(1) of the Act be treated as reply to the notice as return filed against the notice issued u/s.1 .....

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tion received from DIT(Inv.), Unit - 1(4), Mumbai, the ITO 17(1)(3), Mumbai having territorial jurisdiction over the residential address of the assessee has correctly form an opinion and on your request transferred the case record to this charge being having return filed with this charge, you have been ask to give explanation and details vide letter dated 29.11.2011. Hence the proceedings u/s.148 has been correctly initiated and having jurisdiction over the case your request to drop the proceedi .....

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humbly submitted that impugned notice calling for certain information is bad in law ab initio. Any proceeding initiated against the impugned notice which is bad in law ab initio will be against the principals of natural justice . 4. The assessee received the Long Term Capital Gain from the Buniyad Chemicals to the tune of ₹ 1,81,184/-. The information was received from the DDIT(Inv.) - Unit 1(4), Mumbai, that the assessee has taken bogus Long Term Capital Gain entries from M/s.Gold Star F .....

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are of Buniyad Chemicals of ₹ 1,81,184/- was treated from undisclosed funds and added to the income of the assessee. Feeling aggrieved the assessee filed an appeal before CIT(A) who confirmed the order, therefore the present appeal has been filed before us. ISSUE NO.1 TO 2 & 7 TO 10:- 5. Under these issues the addition to the tune of ₹ 1,83,768/- was challenged. Infact DDIT(Inv.) - Unit 1(4), Mumbai, informed the assessee officer that the assessee has taken the bogus long term ca .....

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hokshi. The contention of the assessee is that the assessee acquired 1900 equity shares of Buniyad Chemicals Ltd. through share broker M/s. Mahasagar Securities Pvt. Ltd., which are registered with SEBI under registration No. INB - 230683331/23- 10777, and are sub-broker of NSE Member - ISE Securities & Services Ltd. He bought 1900 equity shares of M/s. Buniyad Chemicals Ltd. issued by the company of Shaila M. Choksi. These shares were taken from the above said broker, the company transferre .....

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o Sales consideration 25.11.2003 600 Infra Leas Financial Services Ltd. 58,032 27.11.2003 700 Infra Leas Financial Services Ltd. 67,704 28.11.2003 600 Infra Leas Financial Services Ltd. 58,832 Total 1,83,768 These sales were effected from Demat Account No.10111342 with Dena Bank. Sales consideration of ₹ 1,83,768/- are deposited in appellant s saving bank account No. HS 7310 of Central Bank of India. Copies of relevant pages of said bank account is attached herewith and marked as Exhibit P .....

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